NDIS agency avoids tribunal hearings with big settlements

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The National Disability ­Insur­ance Agency has negotiated ­secret settlements with three Australians worth almost $1 million in additional payments each year, exposing a strategy to avoid costly public tribunal decisions.

The Australian can reveal a participant, who requires 24-hour care and was initially granted a support package of just $55,000 a year, had their package boosted to more than $465,000 annually after an ­extended legal stoush. All three cases have been handled by Labor-aligned law firm Maurice Blackburn. The other two participants achieved support package boosts of $204,000 and $280,000 a year.

The NDIA does not publish details of these settlements and legal sources say the cases are “just the tip of the iceberg”.

The National Disability ­Insurance Scheme is projected to cost more than $32 billion a year by the end of the next decade. In the past financial year, more than 750 NDIS decisions were challenged and 222 were considered closed by the end of June. Of these, 24 were settled through open hearings at the Administrative Appeals Tribunal, meaning taxpayers remain in the dark in relation to how much extra was spent in 198 other cases.

Maurice Blackburn Queensland managing principal Rod Hodgson, who oversees the firm’s policy and casework on the disability scheme, told The Australian the NDIA did not want to be accountable.

“The NDIA knew these (support) plans were going to be the subject of scathing assessment by the AAT and they knew they did not want that ventilated in a quasi-court, and then in the public domain,” he said.

“My instinct is that someone or a group of people at the NDIA have looked at how bad the plans have been, they have looked at where the plans have been disputed and they have seen there have been exponential changes in those plans. They have then done some actuarial projections based on this small cohort and ­extrapolated the costs to full scheme and they are spooked.”

The problem for many participants in the scheme is that the legislation provides no legal relief if they wish to challenge a decision of the agency. The Australian is aware of persistent, often dramatic undervaluing of support costs that, in some cases, has left people worse off under the NDIS than they were before they entered it.

Ken Halverson won an increase of more than $286,000 from the agency for his son Kurt’s support 30 hours before the parties were due to front an AAT hearing. He had already spent tens of thousands of dollars on legal fees and new medical assessments.

In 2001, Kurt, then 18, had a cardiac arrest and was found by his parents, Ken and Jan, in his bedroom where the family lived in the NSW Hunter region. “We tried to do CPR but there was a blockage and he had been without oxygen for too long,” Mr Halverson said.

Although Kurt was revived, his brain never recovered and he has required around-the-clock care since. From that day, Kurt has never been left alone because he has no ability to move and can choke or injure himself.

“For that first year, my wife looked after him during the day and sat with him every second night while I went to work and looked after him every other night,” Mr Halverson said.

After receiving a compensation payout, the Halversons were able to fund Kurt’s care alongside state-based services. When Kurt received his first NDIS plan in October 2016 it was for $215,900. Although his initial planner recognised he needed 24-hour care, a manager insisted overnight care was not required. “If that plan was implemented, Kurt would not have survived,” Mr Halverson said. “We’ve been lucky enough to have an idea how to fight. The strategy is inherent in the way these cases are run (by the NDIA) because there are only going to be a few people challenge the decisions because only a few people will have the resources to do it.”

The Halversons challenged the decision in December 2016 and waited until May last year to receive a response from the agency, which rejected the evidence of a rehabilitation specialist and kept the plan as it was.

Maurice Blackburn applied for an AAT review that month and in August received a new report from a rehabilitation physician. The same day that evidence was sent to the NDIA, Mr Halverson’s legal team received a draft, revised plan from the agency’s solicitor with the comment: “While investigating the plan in the course of these proceedings the agency has formed the view that the amount of core supports originally included in the plan was insufficient given his level of disability.”

It was another two months before the new plan, valued at almost $503,000 each year, was finalised. “What pushed us to challenge this was this issue that the NDIS is meant to assess every disabled person on their needs,” Mr Halverson said. “It has been my experience in life that if you leave an important document or decision unchallenged, then it becomes the new benchmark.”

Mr Hodgson said people from marginalised backgrounds would suffer most from a process that forced deficient support on to those who could not afford to challenge the NDIA. “There is a demographic factor involved here, too,” he said. “The parents or participants who are more likely to challenge an NDIS decision are more likely to be tertiary-educated and have some resources, while at the other end of the spectrum the families least likely to be able to challenge a decision might be those from a marginalised background.”

An NDIA spokeswoman said only 97 of the private settlements in the past financial year related to planning and funding disagreements but declined to divulge how much extra the agency agreed to pay. “The NDIA does not have a strategy or process that seeks to ­reduce or undervalue participant plans,” the spokeswoman said.